APPENDICES TO THE MINUTES OF EVIDENCE
TAKEN BEFORE THE HOME AFFAIRS COMMITTEE
APPENDIX 1
Memorandum submitted by Barnardo's, Childline,
The Children's Society, End Child Prostitution, Pornography and
Trafficking (ECPAT), National Children's Bureau, NCH, National
Council of Voluntary Child Care Organisations (NCVCCO), the NSPCC
and National Organisation for the Treatment of Abusers (NOTA)
These organisations have come together to consider
the issues in the Sexual Offences Bill in relation to children.
Not all the organisations have practice expertise in all the areas
highlighted, but they have come together to support the general
principles of protecting children.
These organisations welcome the Bill and have
worked closely with the Home Office in developing many of the
proposals in the publication Setting the Boundaries, which
was based upon the Sexual Offences Review. The result of this
close consultation with organisations with expertise in this area,
is that much of the proposed new legislation has been developed
from an evidence based child protection and children's rights
perspective.
There remain however a number of issues currently
contained within the Bill about which the organisations have concerns
or seek further clarification. These are outlined below.
CONSENT (THROUGHOUT—BUT
SPECIFICALLY CLAUSES
76 TO 78)
Although not tackled until clauses 76-78, the
issue of consent is fundamental to the understanding of this Bill.
The organisations accept that there must be a lower age threshold
below which a child is deemed incapable of giving informed consent
(13), but sexual activity between the ages of 13 and 16 (the legal
age of consent) is fairly common. A recent survey showed that
about one-third of boys and a quarter of girls have taken part
in underage sexual activity, but at present the current rate for
criminal offences for consensual underage sexual activity is low.
Very few of these instances actually reach court because a complaint
has to be made, there must be sufficient evidence to proceed,
and the prosecution has to be in the public interest. In 1998
for example, there were just 14 cautions and 6 convictions. It
is important therefore that the response to such activity is reasoned,
proportionate and sensible.
The original review of sexual offences, Setting
the Boundaries, used the definition of "free and genuine
agreement" for consent (paragraphs 2.9 to 2.11). Clause 77
adds capacity to the proposed definition, but fails to define
it.
The Department of Health is in the process of
drafting a Capacity Bill, and we hope that this will lead to improved
joint guidance on how to define and respond to a child's evolving
capacities, bringing in all of the relevant public authorities
who work with children and families including police, schools,
social services and health.
GROOMING AND
ISSUES CONCERNING
THE INTERNET
(CLAUSES 8, 10, 11, 13, 17 AND
POTENTIALLY OTHER
OFFENCES)
The new offence to deal with sex abusers who
use the Internet to "groom" children is welcomed. It
is important that sexual offences which protect children, take
into account such new technologies (especially when considering
that 75% of all 5-16 year olds use the Internet). There have been
approximately 20 convictions in recent years regarding the sexual
assault of a child, in which the initial contact was through an
Internet "chatroom". Consideration must also be given
however to cases where, through the use of a webcam, a person
is directing another person (either in the UK or overseas) to
abuse a child.
It is important that all the relevant sexual
offences within the Bill are considered in relation to the Internet.
Whatever is illegal offline, must be illegal online.
CHILD SEX
OFFENCES COMMITTED
BY CHILDREN
OR YOUNG
PERSONS (CLAUSE
14)
The new offence to address sexual offences committed
by children or young people reflects the fact that children require
protection from abusive behaviour from other children and young
people, as well as adults. The organisations are concerned however
about the introduction of this new offence without the necessary
assessment and treatment services.
The Bill could have provided the opportunity
to introduce a strategic approach to children and young people
who display signs of sexually harmful behaviour to ensure the
co-ordination of assessment, referral and treatment services.
Without the appropriate assessment and treatment however, the
criminal offence fails to address the needs of young people and
children who display signs of sexually harmful behaviour, and
at worst criminalises consensual sexual activity between children.
Treatment must be developed on a multi-agency basis, age-appropriate
and adequately resourced.
Children and young people who sexually abuse
must be treated as children first and foremost. Assessment of
the offence must be done on a case by case basis in tandem with
an assessment of the child's need for protection. Such a process
would reflect the individual needs of each child and take into
account the possibility that the child may have been a victim
of abuse.
FAMILIAL CHILD
SEX OFFENCES
(CLAUSES 28 TO
32)
The new offence which extends the existing offence
of incest to all adults within the family such as step-parents,
foster parents and live-in partners as well as blood relatives
is welcomed. Children should be safe in their families. Adults
within families have a responsibility to protect children. In
doing so they may exert authority, but any abuse of this authority
is very damaging to children and the impact can last well into
adulthood.
OFFENCES AGAINST
CHILDREN WITH
A MENTAL
DISORDER OR
LEARNING DISABILITY
(CLAUSES 33 TO
37)
The new offences which protect people with mental
disorders and learning disabilities are welcomed, but further
clarification is needed as to whether these offences relate to
children as well as adults. There is currently no age specification
within this section of the Bill. What is unclear for example is
whether someone who had abused a child with a learning disability
in a special residential setting would be committing an offence
under "abuse of trust" (clauses 18-27) or "offences
against persons with a mental disorder or learning disability".
PROSTITUTION AND
CHILD PORNOGRAPHY
(CLAUSES 54 TO
60)
Clauses 54-60 comprehensively lay out in law
for the first time the range of offences related to the abuse
of children through prostitution and pornography, and are welcomed.
In particular, the organisations welcome the creation of offences,
which acknowledge all children up to the age of 18, as it is imperative
that children are treated as victims rather than criminals.
There is concern however that the Bill will
do nothing to remove the possibility of a prosecution of a child
for offences related to their involvement in prostitution under
the Sexual Offences Act 1956 and the Street Offences Act 1959.
In the Command Paper, Protecting the Public, the Government
signalled its intention to review these Acts in order to make
them "gender neutral". It is important that a similar
undertaking is made to ensure that legislation makes a clear distinction
between children and adults and the children cannot either in
practice, or theory, be prosecuted. The Government has made clear
its intention that children abused in this way should be treated
as victims. By striking these offences from the statute book it
would remove the possibility of taking children down a criminal
route, and harmonise the legislation in this area with the new
offences created in the Bill. It is important that these arguments
are also considered in relation to 16 and 17 year-olds who it
is implied in the Bill, are technically able to give informed
consent with regard to their involvement in prostitution.
There are concerns that clause 54 does not go
far enough to ensure that offenders have to prove that they believed
a young person involved in this activity was over the age of 18.
When considering the coercive nature of this particular form of
abusive activity and the proclivity that abusers have for children
and young people who are vulnerable, the onus must be placed on
the defendant to prove that they held an honest and reasonable
belief in age if they are to be acquitted.
TRAFFICKING (CLAUSES
61 TO 64)
Trafficking legislation requires a clear distinction
between the trafficking of adults and children. Under the UN Protocol
to Prevent, Suppress and Punish Trafficking in Persons, Especially
Women and Children, a child victim of trafficking applies to those
under the age of 18. This is in line with the United Nations Convention
on the Rights of Child (CRC). Further clarification is needed
therefore about how these clauses build upon the UN Protocol,
where they differ, and which offences these clauses relate to.
Of equal concern is that relating to the inclusion
of "for or in the expectation of gain". To enable easier
prosecution of traffickers this phrase must be omitted from the
legislation. By including "for gain", this requires
further evidence to convict a trafficker. In many cases, no money
or goods may have changed hands, and to prove expectation of gain
is also difficult. The omission of gain is also in line with the
UN Protocol. If a child has been brought to the UK and intended
for, or was abused through prostitution, this should be enough
to convict a trafficker. By proving that they gained or intended
to gain is another obstacle in the prosecution.
Whilst the legislation is very much welcomed,
the resources must be committed to support services for victims
of trafficking. Without these vital services, victims of trafficking
will be unwilling to testify, thus resulting in redundant legislation.
REGISTER OF
SEX OFFENDERS
(CLAUSES 82 TO
94)
Clause 84 (2) covers the notification period
for someone under the age of 18 who has committed a sexual offence.
There are a number of concerns about the applicability of the
notification period (which is half of that for adult offenders)
to children and young people. Children and young people should
be placed on the sex offenders register only in the most exceptional
of circumstances. The level of dangerousness and accompanying
notification periods must be assessed on a case by case basis
to reflect the differing needs of children and young people and
a recognition of the possible abuse which they may have suffered
themselves.
With regard to the notification period for sex
offenders who travel abroad (clause 88), there are many concerns
about the eight-day loophole which allows sex offenders known
to the UK authorities to travel abroad as long as they travel
for less than eight days. This gives sex offenders more than enough
time to travel as far a field as the Far East and commit offences
whilst still fulfilling their obligation under current law. It
is recommended that the clause should be reduced to 72 hours.
SEXUAL OFFENCES
PREVENTION ORDERS
AND RISK
OF SEXUAL
HARM ORDERS
(CLAUSES 104 AND
110)
There are concerns that children overseas are
not adequately protected by the Sex Offenders Prevention Orders
or Risk of Sexual Harm Orders as currently proposed within the
Bill. Further clarification and amendments to these clauses will
be sought to ensure that children overseas are specifically covered
by these offences.
February 2003
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